G. T. Nanavati, J. - (1.) One Suresh Dube was shot dead on a platform of Nalasopara (a suburb of Bombay) Railway Station in broad day light. Many persons saw it and many knew who were the murderers. Because of the terror of the gangs involved none except two persons, one accompanying the deceased and the other who was at that time polishing shoes of that person, have come forward to give evidence against the murderers. One Mukesh Ratilal Shah (P.W. 13), who was injured by one of the bullets fired at that time, has thought it fit not to name the person who had fired the shot. Initial dishonest investigation by the police, on account of close nexus between those gangs and some of the police officers of the area where the said gangs were operating, not only delayed the prosecution of the real culprits but also weakened it considerably. On these allegations 17 persons (thirteen belonging to the two gangs and four police officers) were tried in the Court of the Judge, Designated Court, Pune in Terrorist Sessions Case No. 32 of 1993 and Terrorist Sessions case No. 1 of 1996 (amalgamated with original TSC No. 32/1993), for the murder of Suresh and for commission of terrorist acts and other offences. The trial Court did not consider it safe to convict them on the basis of the prosecution evidence and, therefore, acquitted them of all the charges. Shyam Sunder Dube, brother of Suresh Dube,, feeling aggrieved by the acquittal has filed Criminal Appeal No. 678 of 1997. The State of Maharashtra has also filed Criminal Appeal Nos. 709-710 of 1997.
(2.) The prosecution case is as follows: (a) Nalasopara is a suburb of the City of Bombay. Formerly it was a small and a quiet place but with the expansion of the city of Bombay it also started growing. Development of lands and construction of buildings became a lucrative business. That also led to illegal activity of land grabbing, compulsory sales and forcible taking of possession of lands. Those illegal activities were carried on by the gangs of Pendhari, Suresh Dube and Bhai Thakur since 1980. In 1984 Manik Patil's gang also started operating in Nalasopara area. Bhai Thakur's gang was operating from Virar, a nearby suburb and the last station for the suburban trains running between Churchgate (Mumbai) and Virar. Often there were conflicts and fights between these gangs and because of that one Ram Naresh Chourasiya was murdered in 1984 and Bharat Pendhari was murdered in 1989. Dube brothers having made money stopped that illegal activity one or two years prior to the date of the incident, but continued to carry on the business of land development and construction of buildings. One of the Dube brother, Dr. Om Prakash Dube (P.W. 1) had opened a Nursing Home on the first floor of their building called 'Dube Estates'. Naresh (P.W. 3) was doing business of building materials. Another brother Jai Prakash (P.W. 4) was looking after their Pandava Hotel. Shyam Sunder Dube and Suresh Dube continued to look after land development and building activity. All the brothers were residing on the second floor of 'Dube Estates'. (b) Dube brothers had agreed to purchase one land bearing Survey No. 110 of Village Achole and some other lands of nearby places. Bhai Thakur wanted those lands and had forcibly taken possession of them. Bhai Thakur wanted Dube brothers to transfer Survey No. 110 of Achole to him and for that reason had called Suresh Dube at his office in Virar a few days prior to 9-10-1989. As the relations between Bhai Thakur's gang and Dube brothers were inimical Suresh Dube was not allowed to go alone to Bhai Thakur's office. Dr. Om Prakash had accompanied him. In his office Bhai Thakur, his brother Hitendra Thakur and other associates were present. They had told Suresh Dube to part with that land and also to pay 'haftas' to Bhai Thakur if he and his brothers wanted to remain in Nalasopara and carry on the land development and building construction activity. Suresh Dube was even threatened and wanted that if he did not comply with that demand and took any other action, then the members of his family shall have to perform 'aarti' of his photo within a short time. Because of this threat Suresh Dube was not moving out of his house since then. As there was no response from Suresh Dube, Bhai Thakur and his associates decided to finish him. On 8-10-1989 a warning was given to him on telephone that if he did not transfer that land to Bhai Thakur he would be finished. On that day at night one Srikant Pandey, who was working with Bhai Thakur and had some contact with Suresh, went to the house of Suresh and tried to convince him that if he wanted to remain alive it was advisable for him to give up the land and go away to his native place. On account of this serious threat Suresh and his brothers had decided that Suresh should leave Nalasopara and stay at his native place till there was danger to his life. (c) Since a few days prior to 9-10-1989 Amarnath Tripathi (P.W. 48), brother-in-law of Suresh, had come to Nalasopara and was staying with them. He had to go to Vilay Parle (another suburb of Bombay) to see a boy in connection with marriage of his brother's daughter. Suresh also wanted to go in that direction for purchasing a ticket for going to his native place Gorakhpur, in Uttar Pradesh. Both of them, therefore, left their house for going to Nalasopara Railway Station at about 10.15 A.M. They reached the station within about two minutes time. There were many passengers on the platform. As the train by which they wanted to go towards Churchgate (Mumbai) side was running late Suresh purchased a newspaper from a stall on the platform and started reading it. Amarnath Tripathi went to a shoe polish wala, who was sitting near that stall, for getting his shoes polished. (d) The gang of Manik Patil had accepted supremacy of the gang of Bhai Thakur and both the gangs were co-operating with each other in committing terrorist acts and in carrying on the illegal activities of land grabbing and forcible purchasing of lands. In September 1989, it was decided between the two gangs that Bhai Thakur would liquidate the person whom the gang of Manik Patil wanted to eliminate and that Manik Patil's gang would do away with Suresh Dube. Bhai Thakur's gang had already done their job but Mank Patil's gang was not abide to finish Suresh. Bhai Thakur was, therefore, very angry with Manik Patil's gang and had sent messages that the work should be finished as early as possible. The members of Manik Patil's gang were, therefore, keeping a watch over the house of Suresh Dube. On 9-10-1989 one of the members of the gang saw Suresh going towards the railway station and after locating his position immediately rushed to the nearby hotel belonging to Manik Patil and informed other members of the gang including Narendra Bhoir (A-1) about the presence of Suresh on platform No. 2. So Narendra Bhoir and some other members of the gang who were present there rushed to the platform. Narendra was armed with a pistol. Other members of the gang were also variously armed. Narendra found Suresh standing near the newspaper stall and then fired three shots from a close range. Suresh got injured and fell down on the platform. Narendra went near him and fired one more shot. One of the shots fired by Narendra also caused an injury to Mukesh (P.W. 13). After thus killing Suresh all those assailants ran away from that place. (e) Someone known to Dube brothers immediately ran to their house and informed Shyam Sunder that Suresh was shot dead on the railway platform. One of the two persons who had also accompanied Amarnath to the railway station went back and informed Naresh (P.W. 3) about the incident. Shyam Sunder along with his brothers rushed to the platform and brought back his brother to their house with the help of others. Dr. Om Prakash, Dr. Ajmera and Dr. Bindwani, who were present in the Nursing Home found Suresh dead. (f) Within a very short time PI Kukdolkar, who was in-charge of Vasai Police Station, went to the house of Dube brothers, and first talked to Dr. Dube (P.W. 1) and tried to persuade him not to involve Bhai Thakur and then threatened him by stating that if he involved Bhai Thakur, then the consequences would be serious for him. Thereafter PSI Padekar attached to Palgar Railway Police Station had gone to the house of Dube brothers and made enquiries about the incident. Because of the threat given by PI Kukdolkar and also because they knew that the police was protecting and helping the gang of Bhai Thakur they did not lodge any complaint. A complaint (Ext. 615) was prepared by PSI Padekar in presence of PI Kukodalkar on the basis of what was stated by Shyam Sunder (P.W. 2) and his signature was taken thereon. Police Inspectors Kukdolkar and Nimbalkar often used to visit the house of Dube brothers and threaten them not to disclose the name of Bhai Thakur as he was a strong man and whoever complained against him was killed by him. Investigation was not made honestly. Some of the empties found from the platform were substituted or tampered with. At the instance of Police Inspectors Kurdolkar and Nimbalkar and Bhai Thakur, Patric (A-4) and Anant Shankar Patil (A-11) were arrested as the persons responsible for the murder of Suresh. A revolver was recovered at the instance of A-4 as the weapon with which Suresh was killed. Those two accused were then charge-sheeted and put up for trial before the Sessions Court, Thane in Sessions case No. 88/91. Hearing of the said case could not proceed further as both the accused were shown absconding after they were released on bail and no effort was made by the police for getting warrants issued for securing their presence before the Court. (g) On February 19, 1992 the police set up at the Vasai police station and Palghar railway police station, within whose jurisdiction those gangs were operating, had changed. DIG Suradkar (P.W. 75) of the Railways, during his visit to Palghar railway police station, had an occasion to look into the investigation papers relating to the murder of Suresh. He became suspicious about honesty of the investigation and identity of the real assailants. He, therefore, sent for Shyam Sunder Dube to know the truth. In view of the attitude of the police till then Shyam Sunder did not personally go but sent his mother Bhagwati (P. W. 5) and Dr. Ritu, wife of Dr. Om Prakash Dube. They complained to him about the dishonest investigation made by PSI Padekar and PI Berge and the role played by PIs Kukdolkar and Nimbalkar. On being assured by Suradkar that proper investigation will be made, a written complaint (Ext. 237) was then given by Dube brothers on 18-5-1992. Suradkar forwarded it to DSP Deshmukh for further enquiry. The enquiries made by him and PI Shinde revealed that the gangs of Bhai Thakur and Manik Patil were committing terrorist acts in Nalasopara and surrounding areas, they had created a reign of terror and that Suresh was killed by a person belonging to the gang of Manik Patil at the instance of Bhai Thakur. Deshmukh, therefore, submitted a report under Section 173(8) of the Code of Criminal Procedure to the Sessions Court at Thane and sought permission for re-investigation of the case. Permission was granted. Further investigation made by Mr. Deshmukh and his officers revealed existence of the gangs of Bhai Thakur, Bharat Pendhari, Suresh Dube and Manik Patil. It also revealed that Bhai Thakur's brothers Hitendra Thakur (A-9) and Deepak Thakur, Prashant Rajaram Tandel (A-8), Istiyak Mukhtyar Khan (A-13) and some others were members of the Bhai Thakur's gang. It also revealed that terrorist acts were committed by the gangs of Bhai Thakur and Manik Patil and that those two gangs were responsible for the murder of Suresh Dube. During the investigation by Deshmukh A-1 discovered a pistol from which he had fired shots at Suresh. A-1 to A-8 and A-11 also made confessions about the terrorist acts committed by the two gangs, the motive for committing murder of Suresh Dube, the manner in which it was committed and how accused Nos. 14 to 17 had helped Bhai Thakur in concealing real offenders.
(3.) PI Desai (P.W. 90), who took over the investigation after superannuation of Deshmukh on 30-6-1993, submitted a charge-sheet to the Designated Court on 27-8-1993 against A-1 to A-11 and deceased accused Narayan Gauda. Thereafter, supplementary charge-sheets were filed against A-12 to A-17 on different dates. The Designated Court, however, took cognizance against A-1 to A13 only as no sanction to prosecute A-14 to A-17 was obtained under the TADA Act. Their case was, therefore, forwarded to the Sessions Court at Thane. Lateron sanction was obtained to prosecute those police officers also under the TADA Act and their case was amalgamated with the original T.S.C. No. 32/1993 and the charge was suitably amended.;